Dorsey v. Banks
| Citation | 749 F.Supp.2d 715 |
| Decision Date | 28 September 2010 |
| Docket Number | Case No. 2:09–cv–486. |
| Parties | Richard G. DORSEY, Petitioner,v.Ed BANKS, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Dennis Celestino Belli, Columbus, OH, for Petitioner.M. Scott Criss, Columbus, OH, for Respondent.
Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge has recommended that a conditional writ be granted on one of Petitioner's claims. Respondent objects to that recommendation, and Petitioner objects to the recommendation that his other grounds for relief be found to be without merit. He also requests that the relief recommended by the Magistrate Judge be converted to an unconditional writ. The Licking County prosecuting attorney has also moved to intervene for the purpose of asserting objections. That motion, which Petitioner opposes, will be denied and the objections filed by the Licking County Prosecuting Attorney will be stricken. For the following reasons, and after a de novo review of all of the objections, the Court overrules all pending objections and grants a conditional writ of habeas corpus to petitioner.
The procedural history of this case was accurately summarized in the Report and Recommendation. Petitioner was indicted on six felony counts involving having sexual contact or engaging in sexual conduct with his mother-in-law, Bonnie Parker. Following a jury trial, Petitioner was found guilty of one count of rape and three counts of gross sexual imposition. As more fully discussed below, two of the rape counts were dismissed by the state court at the conclusion of the state's case. As to the counts on which a conviction was obtained, the trial judge sentenced Petitioner to a ten-year term of imprisonment on the rape count and one-year terms of imprisonment on the three gross sexual imposition counts, with all sentences running concurrently. His conviction was affirmed on appeal, see State v. Dorsey, No. 2007–CA–091, 2008 WL 2571851 and the Ohio Supreme Court denied review. Petitioner's federal habeas corpus petition asserts five claims:
1. Petitioner's convictions for one count of rape and three counts of gross sexual imposition of a “substantially impaired” victim are not supported by evidence sufficient to satisfy the Due Process Clause of the Fifth and Fourteenth Amendments.
2. Lack of differentiation between the counts of the indictment, an ambiguous partial-acquittal ruling, and overbroad jury instructions deprived Petitioner of his Fifth and Fourteenth Amendment right to adequate notice of the charges, and the ability to prepare a defense and protect himself against double jeopardy.
3. The admission of the alleged victim's testimonial statements made during a forensic interview accusing Petitioner of sexual assault violated his Sixth and Fourteenth Amendment right to confront and cross-examine his accuser.
4. Repeated instances of prosecutorial misconduct and overreaching denied Petitioner his right to due process and a fundamentally fair jury trial under the Fifth, Sixth and Fourteenth Amendments.
5. Trial counsel's deficient performance denied Petitioner his Sixth and Fourteenth Amendment right to the effective assistance of counsel.
The Report and Recommendation found the second claim to be meritorious and recommended that relief in the form of a conditional writ be granted on that claim.
After the Report and Recommendation was issued, the Licking County Prosecuting Attorney moved to intervene in this case for the purpose of filing objections. Although, by the time the motion was filed, Respondent had already objected to the proposed grant of relief, the prosecuting attorney argued that because his office will have to conduct any retrial of Petitioner, he has an interest in the case, and that he wishes to advance arguments not made by the Ohio Attorney General's Office on behalf of Respondent. Respondent has not objected to the motion, but petitioner has, pointing out that the prosecuting attorney is not a proper party to a habeas corpus proceeding and that the Ohio Attorney General is competent to address the issues raised by the petition and the Report and Recommendation.
The prosecuting attorney cites to a single case as authority for his motion. That case, D'Ambrosio v. Bagley, 619 F.Supp.2d 428 (N.D.Ohio 2009), granted the request of the Cuyahoga County prosecutor to intervene in a habeas corpus action. The request was not opposed by any party, however, and appears to have been granted for the limited purpose of allowing the prosecutor to argue for an extension of the date by which the petitioner was to be retried following the grant of a writ. Thus, that case has little precedential value.
It is not entirely clear that Fed.R.Civ.P. 24, under which the county prosecutor seeks to intervene, should be applied in habeas corpus proceedings. Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Federal Rules of Civil Procedure may be applied in habeas cases “to the extent that they are not inconsistent with any statutory provisions and these rules .....” Rule 2(a) provides that the state officer who has custody of a petitioner must be named as a respondent. It says nothing about other parties beyond the petitioner and the respondent. Because a number of courts ( see, e.g., Saldano v. Roach, 363 F.3d 545 (5th Cir.2004); Rodriguez v. Ridge, 290 F.Supp.2d 1153 (C.D.Cal.2003)) have analyzed a request to intervene in a habeas corpus action under Rule 24, however, this Court will do likewise.
The Saldano decision is instructive in this regard. There, the court, in determining that a district attorney should not be allowed to intervene in a habeas corpus case, cited to Texas law that, like Ohio law, mandates representation of the State by the Attorney General's office. The court concluded that the State of Texas was the real party in interest in a habeas corpus proceeding and that only the Attorney General was allowed to represent that interest. Thus, the district attorney had no legal interest in the case even if the burden of retrial were to fall on his shoulders. Even if that were not the case, the court held that the district attorney had not demonstrated that the Attorney General was not capable of adequately representing his interests, so that the denial of intervention was justifiable on that ground as well.
The same factors apply equally in this case. It is the job of the Ohio Attorney General to represent the State of Ohio in habeas corpus proceedings where a petitioner is in state custody. See Ohio Rev. Code § 109.02. There has been no showing that the Attorney General cannot discharge that duty effectively here. As Judge Zouhary observed in McDonald v. Warden, Case No. 3:08 CV 1718 (N.D. Ohio November 24, 2009), an order in which a similar motion to intervene filed by the Erie County prosecuting attorney was denied, the basis of the motion to intervene was to permit the prosecutor “to make an argument against habeas relief that the Ohio Attorney General's office is perfectly capable of making.” He ruled that this was not an adequate basis for intervention, and this Court agrees. The Attorney General has vigorously defended this case from the outset and has objected to the same recommendation that spurred the filing of the motion to intervene. Thus, both because the Licking County prosecuting attorney has not cognizable legal interest in the outcome of this case and because the Ohio Attorney General is statutorily charged with representing the interest of the State of Ohio in preserving Petitioner's conviction and is able to do so adequately, the Court DENIES the motion to intervene. (Doc. # 25.) It is further ordered that, in accordance with Petitioner's motion to strike (Doc. # 30), the objection filed by the Licking County Prosecuting Attorney (Doc. # 27), which filing was never authorized by the Court, is STRICKEN.
The basic facts of this case are quoted in the Report and Recommendation from the state appellate court opinion. They show that the investigation of Petitioner began when his mother-in-law reported on February 25, 2006, that Petitioner had raped her. Although he initially denied having any sexual contact with Ms. Parker, Petitioner eventually admitted to having had intercourse with her and engaging in other sexual conduct. He consistently denied any use of force (a contention with which the jury agreed), however, and he also maintained that Ms. Parker, who suffered from dementia, both consented to any sexual acts that occurred and was mentally capable of forming such consent. The jury apparently disagreed with that latter contention and found Petitioner guilty of violating a statute that criminalizes both forcible rape and engaging in sexual conduct with someone whose “ability to resist or consent is substantially impaired because of a mental or physical condition ....” Ohio Rev. Code § 2907.02(A)(1).
In his first, third, fourth, and fifth grounds for relief, Petitioner argues that the evidence was insufficient to support a conviction, that his Sixth Amendment right to confront the witnesses against him was violated by the admission of certain hearsay testimony, that the prosecutor was guilty of overreaching, and that his own counsel was constitutionally ineffective. The Report and Recommendation analyzed these claims in light of 28 U.S.C. § 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision...
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